The majority suggests that a technological arts test is nothing more that a “short-
cut” for its machine-or-transformation test. Ante at 29. To the contrary, however, the two
tests are fundamentally different. Consider U.S. Patent No. 7,261,652, which is directed
to a method of putting a golf ball, U.S. Patent No. 6,368,227, which is directed to a
method of swinging on a swing suspended on a tree branch, and U.S. Patent No.
5,443,036, which is directed to a method of “inducing cats to exercise.”
Each of these
“inventions” involves a physical transformation that is central to the claimed method: the
golfer’s stroke is changed, a person on a swing starts swinging, and the sedentary cat
becomes a fit feline. Thus, under the majority’s approach, each of these inventions is
patent eligible. Under a technological arts test, however, none of these inventions is
eligible for patent protection because none involves any advance in science or
technology.
Regardless of whether a claimed process involves a “physical transformation,” it
should not be patent eligible unless it is directed to an advance in science or
technology. See Benson, 409 U.S. at 64-71 (finding a process unpatentable even
though it “transformed” binary-coded decimals into pure binary numbers using a general
purpose computer). Although the Supreme Court has stated that a patentable process
will usually involve a transformation of physical matter, see id. at 70, it has never found
a process patent eligible which did not involve a scientific or technological innovation.
See Diehr, 450 U.S. at 192-93 (finding a process patentable where it involved new
technology for curing rubber).
9
The majority’s approach will encourage rent-seeking on a broad range of
human thought and behavior. For example, because organizing a country into a
democratic or socialist regime clearly involves a physical transformation, what is to
prevent patents from issuing on forms of government?
2007-1130
22